Citation NR: 9800705
Decision Date: 01/12/98 Archive Date: 01/21/98
DOCKET NO. 94-42 258 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for esotropia.
2. Entitlement to an increased rating for low back strain,
currently rated as 10 percent disabling.
3. Entitlement to an increased rating for hemorrhoids,
currently rated as 10 percent disabling after September 21,
1996.
4. Entitlement to an increased (compensable) evaluation for
hemorrhoids prior to September 21, 1996.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from December 1968 to
December 1992.
This case was previously before the Board of Veterans'
Appeals (hereinafter Board) on appeal from adverse action by
the St. Petersburg, Florida, Regional Office (hereinafter
RO). The development requested by the Board in the July 1996
Remand has been substantially accomplished.
At the time the case was previously before the Board, the
issues included increased (compensable) ratings for
hemorrhoids and for a low back strain. While the case was
undergoing Remand development, 10 percent ratings were
assigned. The 10 percent rating for the low back disorder
was assigned effective January 1, 1993, the date of the
claim. The 10 percent rating for hemorrhoids was assigned
effective September 21, 1996, the date of an examination
which showed findings which were compensable. As the
effective date was not the date of the claim for an increase,
the issues have been recharacterized on the title page to
recognize the dichotomy.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that entitlement to service connection
for esotropia is warranted because this condition worsened
during service to the point that it resulted in headaches and
interfered with his ability to read. With regard to the
claims for increased ratings on appeal, the veteran contends
that his lower back “gives out” periodically and that there
is such severe back pain on occasion that he requires Motrin,
hotpacks, and icepacks. He also contends that the low back
disorder interferes with his ability to work. As for
hemorrhoids, the veteran contends that this condition
involves occasional bleeding, swelling and burning, and that
he must use a prescribed suppository “once or twice a day.”
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claims.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.
2. The veteran’s esotropia is a congenital condition, the
underlying pathology of which did not undergo a permanent
increase in severity as a result of service or in-service
event or occurrence.
3. The low back strain is currently manifested by pain and
lumbar motion limited to 85 degrees of forward flexion; 20
degrees of backward extension, and 40 degrees of right and
left lateral bending; neither muscle spasm nor the loss of
lateral spine motion is shown.
4. The most recent VA examination showed an external large
inflamed hemorrhoid without any evident bleeding, secondary
anemia or fissures.
5. Prior to the most recent examination, the evidence did
not show more than mild to moderate hemorrhoids.
CONCLUSIONS OF LAW
1. Esotropia was not incurred in or aggravated by service
and is not a disability for which service connection benefits
are paid. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 1991);
38 C.F.R. §§ 3.102, 3.303, 3.306 (1996).
2. The criteria for a rating in excess of 10 percent for low
back strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.71a, Diagnostic
Code (DC) 5292, 5295 (1996).
3. The criteria for a rating in excess of 10 percent for
hemorrhoids after September 21, 1996, are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102,
3.321, Part 4, 4.114, DC 7336 (1996).
4. The criteria for a compensable rating for hemorrhoids
prior to September 21, 1996, have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4,
4.114, DC 7336 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, it is noted that the veteran’s service medical
records are not now on file. These records were apparently
of record at the time this matter was originally before the
Board as reference to service medical records is made. The
Board, administratively, contacted the RO to ascertain
whether the service medical records might not have been
returned to the Board. The RO indicated that no additional
records are located there. A search at the Board has failed
to locate the service medical records. Thus, the Board must
proceed based on the evidence of record. For reasons
explained below, the absence of the service medical records
does not adversely affect the ability to enter an informed
decision in this case.
In light of the absence of the service medical records at the
time this decision was completed, the Board will concede that
the veteran has presented sufficient evidence to conclude
that his claims are "well-grounded" within the meaning of
38 U.S.C.A. § 5107(a). The credibility of the veteran’s
evidentiary assertions are presumed for making the initial
well-grounded determination. The Board is also satisfied
that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has
been fulfilled as there is no indication that there are other
records available that would be pertinent to the veteran's
appeal.
In this regard and as noted, efforts have been conducted at
the Board and the RO to locate the veteran’s service medical
records. These efforts have been unsuccessful, and the Board
finds that the further delay in the adjudication of the
claims addressed by this decision which would result from
another remand to search for service medical records would
not be justified as there is no indication that such a search
would yield positive results. In addition, the adjudication
of the four issues on appeal has essentially been based on
post-service evidence of record, rather than in-service
evidence (or lack of evidence), thus resulting in no
prejudice to the veteran that is discernible to the Board.
Also considered by the Board were the contentions by the
veteran’s representative with regard to the purported
inadequacy of the VA examinations that have been afforded the
veteran. However, the Board finds that the relevant VA
examinations reports of record contain sufficient clinical
evidence and descriptions of symptomatology to equitably
adjudicate the veteran’s claims.
I. Esotropia
In adjudicating a well-grounded claim, the Board determines
whether (1) the weight of the evidence supports the claim or,
(2) whether the weight of the "positive" evidence in favor of
the claim is in relative balance with the weight of the
"negative" evidence against the claim. The appellant
prevails in either event. However, if the weight of the
evidence is against the appellant’s claim, the claim must be
denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Congenital defects, and refractive errors of the eyes, are
not “diseases” for which service connection can be granted.
38 C.F.R. § 3.303(c). Service connection may be in order for
superimposed disability on a congenital or developmental
defect. O.G.C. Prec. Op. 82-90, 56 Fed. Reg. 45,711 (1990)
(Precedent opinion of the General Counsel of the VA).
A preexisting injury or disease will be considered to have
been aggravated by active service where there is an increase
in disability during service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153;
38 C.F.R. § 3.306.
Temporary or intermittent flare-ups during service of a
preexisting injury or disease are not sufficient to be
considered "aggravation in service" unless the underlying
condition, as contrasted to symptoms, is worsened. Jensen v.
Brown, 4 Vet. App. 304, 306-07 (1993).
The evidence relevant to the this issue is summarized as
follows. Reports from an examination conducted by a private
physician in February 1993 resulted in diagnoses to include
esotropia, “probably with onset in childhood as manifest
today by alternate suppression testing.” The diagnoses also
included headaches of uncertain etiology. Amblyopia was also
noted.
Upon VA examination in September 1996, an ocular deviation of
approximately 20 diopters of esotropia was noted. This was
felt to be a “small amount” of esotropia that was “very
likely due to anisometropia.” It was also indicated by the
examiner as follows: “[The veteran] has anisometropic
amblyopia of the right eye. This problem is a congenital
problem and the esotropia is a antral progression of the
anisometropia. This is not because of his service in the
military. The [veteran’s] esotropia may have increased
during his service in the military, but not because of his
service in the military. (emphasis added). The VA examiner
also stated that the veteran’s headaches were the result of
him not having corrective bifocals rather than any pathology
or worsening in pathology that could be attributed to
service. He further stated that any progression of the
esotropia was the natural progression of the disorder and the
because of military service.
The objective “negative” medical evidence summarized above
has not been refuted by any objective “positive” evidence,
and the “positive” evidence of record is limited to the
veteran’s written assertions and testimony alleging that his
esotropia worsened as a result of service. Absent any
independent supporting clinical evidence from a physician or
other medical professional, "[t]he veteran's own statements
expressing his belief that his disabilities are service
connected . . .are not probative." Espiritu v. Derwinski, 2
Vet. App. 492, 495 (1992). There is no “independent
supporting clinical evidence” to corroborate the veteran’s
assertion that the underlying pathology associated with his
esotropia worsened as a result of service, and the Board in
short must conclude that the “negative” evidence outweighs
the “positive” evidence. Accordingly, the claim for service
connection for esotropia must be denied. Gilbert, 1 Vet.
App. at 49; 38 U.S.C.A. §§ 1110, 1131, 1153;
38 C.F.R. §§ 3.303, 3.306. The evidence on file clearly
suggests that the veteran’s esotropia was a congenital defect
that existed prior to service, and that a permanent increase
in the underlying pathology associated with this condition
did not result from service. As such, the claim must be
denied.
II. Low Back Strain
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Separate diagnostic codes identify the various disabilities.
Where there is a reasonable doubt as to the degree of
disability, such doubt shall be resolved in favor of the
claimant, and where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. §§ 3.102,
4.3, 4.7. In addition, the Board will consider the potential
application of the various other provisions of 38 C.F.R.,
Parts 3 and 4, whether or not they were raised by the veteran,
as well as the entire history of the veteran's disorder in
reaching its decision, as required by Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
Slight limitation of lumbar motion warrants a 10 percent
rating. Moderate limitation of lumbar motion warrants a 20
percent rating. 38 C.F.R. § 4.71a, DC 5292.
Lumbosacral strain manifested by characteristic pain on
motion warrants a 10 percent disability rating. Lumbosacral
strain manifested by muscle spasm on extreme forward bending
or the loss of lateral spine motion warrants a 20 percent
disability rating. 38 C.F.R. § 4.71a, DC 5295.
Summarizing the relevant clinical evidence of record, the RO
has indicated that the service medical records revealed
complaints about low back pain in September 1969 and a 15
year history of back pain in February 1990 (see April 1993
rating decision). The relevant post-service clinical
evidence includes reports from a February 1993 VA examination
that included no specific reference to back symptoms or
pathology. Service connection for “low back strain, history”
was established by the RO in the April 1993 rating decision.
Thereafter, the veteran was afforded another VA examination
in September 1996 as directed by the Board in the July 1996
remand. At that time, the veteran complained about stiffness
in the lower back but did not refer to any radicular or
neurological problems. An X-ray of the lumbosacral spine was
within normal limits. Range of lumbar motion studies
revealed 85 degrees of flexion, 20 degrees of extension, and
40 degrees of right and left lateral bending. Straight leg
raising was negative as were the motor and sensory
examinations. Deep tendon reflexes were “2+” and
symmetrical. The Babinski response was absent and the
veteran’s gait was said to be normal. The impression was
chronic myofascial pain syndrome. On x-ray examination a
normal lumbosacral spine was noted.
Following the September 1996 VA examination, a March 1997 VA
rating decision assigned a 10 percent rating for low back
strain. In reviewing the recent clinical evidence from the
September 1996 VA examination, which is the most probative
evidence to consider in determining the proper rating for
assignment in the instant case, Francisco v. Brown, 7 Vet.
App. 55 (1994), the Board concludes that the criteria for a
rating in excess of the 10 percent rating assigned by the
March 1997 rating decision are not met. In making this
determination, the Board notes that the September 1996 VA
examination did not reveal a muscle spasm or “the loss of
lateral spine motion,’’ thereby precluding a 20 percent
rating under 38 C.F.R. § 4.71a, DC 5295. Also, the
limitation of lumbar motion recorded therein could not be
described as being any more than “slight,” thus precluding
the assignment of a rating in excess of 10 percent under
38 C.F.R. § 4.71a, DC 5292. As there were no neurologic
deficits reports upon recent VA examination, a rating under
DC 5293 (intervertebral disc syndrome) would not be
appropriate.
The Board has considered the provisions of 38 C.F.R. §§ 4.40,
4.45 and the holding in DeLuca v. Brown, 8 Vet. App. 202
(1995), but there is no indication that there is any
increased functional loss due to painful use, weakness,
excess fatigability, and/or incoordination due to the
service-connected low back strain warranting a higher
evaluation. Finally, the Board has also reviewed the
argument submitted in written contentions and oral testimony
asserting that the disability in the low back is more severe
than is contemplated by the 10 percent rating currently
assigned. Such uncorroborated subjective “positive” evidence
is in the opinion of the Board outweighed by the objective
“negative” clinical evidence summarized above, and the Board
thus concludes that the claim for an increased rating for a
low back strain must be denied. Gilbert, 1 Vet. App. at 49.
Also considered by the Board were the provisions of 38 C.F.R.
§ 3.321(b)(1), which state that when the disability picture
is so exceptional or unusual that the normal provisions of
the rating schedule would not adequately compensate the
veteran for his service-connected disabilities, an
extraschedular evaluation will be assigned. To this end, the
Board notes that neither frequent hospitalization nor marked
interference with employment due to the veteran's service-
connected low back strain is demonstrated, nor is there any
other evidence that this condition involves such disability
that an extraschedular rating would be warranted under the
provisions of 38 C.F.R. § 3.321(b)(1).
III Hemorrhoids
Mild or moderate hemorrhoids are rated noncompensably
disabling. Large or thrombotic irreducible hemorrhoids
manifested by excessive redundant tissue evidencing frequent
recurrences warrant a 10 percent disability rating.
Hemorrhoids involving persistent bleeding with secondary
anemia or with fissures warrant a 20 percent disability
rating. 38 C.F.R. § 4.114, DC 7336.
Summarizing the facts pertinent to this issue, the RO has
indicated that the service medical records include references
to an abscessed pilonidal cyst in May 1972 and the excision
of hemorrhoids in May 1986 (see April 1993 rating decision).
The relevant post-service clinical evidence includes reports
from the aforementioned February 1993 VA examination which
indicated there was a well-healed scar in the area of the
previous surgery for the pilonidal cyst. The April 1993
rating decision granted service connection for hemorrhoids
and assigned a noncompensable evaluation for this disability.
The record contains an August 1993 VA outpatient report to
the effect that the veteran needed medication for back pain
and hemorrhoids. There was no rectal bleeding present. It
was noted that symptoms were controlled with medication.
Thereafter, the pertinent evidence includes reports from a
September 1996 VA examination in which the veteran stated
that his hemorrhoids had been a “recurring problem with
sporadic itching” approximately two times a week. He
reported occasional bleeding “about once each month” and rare
soiling. The veteran denied having anemia or problems with
fistula or exudation. A rectal examination conducted at that
time noted an external large inflamed hemorrhoid in the
anterior portion of the rectum. No bleeding was shown but
the rectal tone was slightly decreased in the area of the
hemorrhoid. Based on these findings, the rating for
hemorrhoids was increased to 10 percent by a November 1996
rating decision. The assigned effective date was September
21, 1996, the date of the examination.
The Board has reviewed the evidence on file for prior to
September 21, 1996. That evidence, as set out above, does
not describe more than mild or moderate hemorrhoids prior to
September 21, 1996. In February and August 1993 no large
tissue was reported, and it was noted that there was control
of symptoms on medication. It was not until the more recent
examination that findings indicative of a compensable rating
were demonstrated.
Applying the criteria for a 20 percent rating for hemorrhoids
listed at 38 C.F.R. § 4.114, DC 7336 to the facts summarized
above, the Board concludes that a rating in excess of 10
percent for hemorrhoids is not warranted after September 21,
1996. A review of the evidence contained in the reports from
the most recently conducted VA examination summarized above,
the most probative evidence of record as per the provisions
of Francisco, 7 Vet. App. at 55, did not include findings
suggestive of persistent bleeding, anemia or fissures. The
veteran himself denied having anemia at the time of the most
recent VA examination, and he did at that time report having
any problems with “persistent” bleeding. This “negative”
clinical history and evidence is in the opinion of the Board
of greater probative value than the “positive” evidence
represented by the contentions and testimony asserting a
greater level of disability associated with hemorrhoids.
Accordingly, the claim for an increased rating for
hemorrhoids must be denied. Gilbert, 1 Vet. App. at 49. In
making this determination, the Board has also concluded that
the disability picture associated with hemorrhoids is not so
unusual as to warrant the assignment of an extraschedular
rating under the provisions of 38 C.F.R. § 3.321(b)(1) either
before or after September 21, 1996.
ORDER
Entitlement to service connection for esotropia is denied.
Entitlement to a rating in excess of 10 percent for low back
strain is denied.
Entitlement to a rating in excess of 10 percent for
hemorrhoids after September 21, 1996, is denied.
Entitlement to a compensable rating for hemorrhoids prior to
September 21, 1996, is denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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